In April, many tech writers were enraged to learn that the US Court of Appeals for the 11th Circuit had sentenced a man to 15 months in prison and fined him $50,000 for “counterfeiting” software recovery disks that Microsoft gives away for free. Microsoft got bashed aplenty for even pursuing the case (disks, really?), but the real villains, according to tech press, were the three presiding judges who allowed themselves to be bamboozled by Microsoft into believing that the defendant, Eric Lundgren, had done something wrong.
The main point of contention for the tech journalists was the judges’ apparent inability to understand the technical issues underlying the case (specifically, how software is distributed and licensed). As TechDirt’s Mike Masnick opined, the verdict against Lundgren betrayed the judges’ “near total ignorance of technology,” noting that the average age of the three judges was 66.
Concern over the ability or willingness of aging judges to keep up with rapid changes in technology is nothing new. The US Supreme Court is almost legendarily hazy about technology that Americans use every day. Their ignorance can be amusing — as when Justice Sonia Sotomayer slipped and referred to Netflix as “Netflick,” or when Justice Samuel Alito attempted to make a joke about “trolls,” obviously unaware of the term’s modern usage. A bit more concerning are instances where justices have to be schooled on everyday tech such as email, pagers, cloud storage, social media and the like. If the top judges in the land can’t understand the basic technologies around which modern life revolves, the argument goes, how can they be expected to rule on complex cases involving data privacy, intellectual property and other technologically complex matters — indeed, matters that will inevitably appear on their docket with increasing frequency in the future?
Supreme Court justices can get away with some technological obliviousness because their job, ultimately, is to interpret the Constitution, and they can take as much time as they want and get as much research help as they need to make a decision. Judges in lower courts don’t always have that luxury. When faced with cases involving complex technology, judges must often be educated, along with juries, about the technological principles involved, sometimes just to understand the crime in question.
While it’s tempting to conclude that judges over a certain age are inherently incapable of grasping modern technology, the problem with the stereotype of the Luddite judge is just that — it’s a stereotype. In the Northern District of California, for example, Judge William H. Alsup, while presiding over the 2012 Oracle vs. Google trial, earned a certain amount of notoriety for teaching himself Java in order to understand the case better. He was 66 at the time, and had been coding for fun since the 1980s. Recently, retired New York District Judge Shira A. Scheindlin revolutionized eDiscovery in several groundbreaking decisions during the early 2000s. And, as Molly Van Houweling, director for the Berkeley Center for Law and Technology has argued, judges everywhere rely on lawyers to explain the nuances of the cases before them. Cases involving technology are no exception.
“In every case, the justices have to learn about something that they may need a crash course or a refresher course in — whether it’s an esoteric body of law, or some technology, or the details of how a small business works,” says Van Houweling. “They just have to be quick studies.”
Certainly, there are plenty of older judges, particularly in appellate courts, for whom technology is anathema. But they will eventually retire and be replaced by younger, presumably (though not necessarily) more tech-savvy judges in the future. (Though, as this withering re-cap of a tech-savvy judge’s workday suggests, life is no easier, and decisions no clearer, for judges who embrace technology.)
The larger problem for the legal system with regard to new technology is that accelerating pace of technological change is putting pressure on the entire system to adapt and respond to issues (e.g., data privacy, patent claims, intellectual property, cybercrime, identity theft, ransomware, etc.) that haven’t really existed before. The court system is slow and methodical by design, no matter who is on the bench; and the contrast between a swift-moving society and a slow-moving court system creates inevitable tensions.
It’s also worth noting that even the most tech-averse judges can offer useful opinions. Supreme Court Justice Antonin Scalia may not have understood that HBO was a cable channel, but he was famous for the cogency of his arguments in favor of net neutrality during the so-called “Brand X” trial in 2005.
His age at the time: 69.